ACLU Statement on RESTORE ACT

WASHINGTON -- Today the Democratic leadership unveiled the RESTORE Act. What follows are the ACLU’s comments on that draft.

The following can be attributed to Caroline Fredrickson, Director of the ACLU’s Washington Legislative Office:

“The ACLU has one key problem with the RESTORE Act. As drafted, the RESTORE Act still allows for the U.S. government to collect phone calls and emails from Americans without an individual warrant.

"The problem in the draft legislation is the year-long program warrants — sometimes called basket warrants, sometime called blanket warrants. Whatever you call them there is no specific target, which goes against the Fourth Amendment. The Fourth Amendment requires individual warrants if Americans are involved.

Program warrants are the 21st century version of King George’s heavy-handed intrusions on individual privacy. We would not tolerate allowing government agents to sit in our living rooms recording our personal conversations. We should not permit it simply because the government now has the capacity monitor remotely and without our knowledge.”

This bill is better than the so-called Protect America Act: here are the areas where the ACLU has seen real improvement.

Overseen by the court. Re-iterates that FISA is the go-to court.

Requires six-month audit and a database to go to Congress for review.

Telecom companies are not granted immunity from illegal activity in this draft of the bill.

The scope of the searching has been narrowed to “foreign affairs intelligence and improvement over a more broad definition in the so-called Protect America Act.

What follows is an explanation of why we oppose the year-long program warrants in the bill.

Baskets, Buckets, and Blankets? What's wrong with these so-called "warrants"?

Called baskets, buckets or blankets, the new warrants created by the Protect America Act, and maintained in some form by the RESTORE Act (Conyers/ Reyes) are most commonly known as "program" or "general" warrants that have been held unconstitutional for violating the Fourth Amendment. They may have a new name this go-around, but they are the same program warrants believed to be used the in the President's illegal spying program after 9/11 and codified in the FISA modernization bill introduced by Rep. Wilson that Democrats opposed in the 109th Congress.

The Fourth Amendment has several requirements before a search or seizure is constitutional — that a judge is involved, that there is probable cause, that the search or seizure is reasonable and most important for this discussion — the things searched or seized have to be stated with particularity.

Particularity was written into the Fourth Amendment due to past abuses by King George, whereby the government would issue blank warrants that allowed government officials wide discretion to rifle through personal belongings or search people, without particularized suspicion, to look for anything illegal. No description was actually given of the illegal behavior that was being investigated, because the government was on a fishing expedition. This abuse of power was one of the injustices that led to the American Revolution.

Statutes and even individual searches and seizures have since been held unconstitutional in the past because they violate the particularity requirement.

The Protect America Act and the RESTORE Act allow the government to issue these broad program warrants that state neither the targets of the search, nor the facilities that will be accessed. They do not describe what is going to be seized, and eventually used, by the government. They are virtually a blank check that only requires the surveillance be directed at people abroad, which may very well be unconstitutional.

The RESTORE Act does not require individualized court orders for anything collected under the new surveillance program. The program can collect any communication as long as one leg of it is overseas, leaving open the distinct possibility — and probability — that the other leg is here in the U.S. and is an American.

If Americans’ communications are swept up by this new, general program warrant, there is no requirement that a court actually review whether those communications are seized in compliance with the Fourth Amendment.

The RESTORE Act, as currently written, allows the Attorney General to negotiate secret guidelines with the secret FISA court about how to use US information, and whether to go back to the court for an individualized warrant to access US communications.

There is no requirement in the RESTORE Act that individualized warrants be issued before the government collects communications to which an American is a party. If a US phone call or email is picked up in these general warrants — not based on any suspicion of wrongdoing, or even based on a link to terrorism — they can be saved and used by the government without any court review.

The procedures for this court have always been secret and no one, save a few Intelligence Committee members, know how well they work or how they are really implemented. Something so fundamental as whether the government can listen to our phone calls or read our emails should not be left to be decided in secret by a handful of people. These issues have to be written into statute so there is no question about our privacy and so there can be accountability when the rules are broken.

Attempts to find a procedure that gives the government flexibility while respecting the constitutional requirement of particularity have been rejected. It is perfectly reasonable to allow program warrants to collect calls and emails among foreigners, but Americans deserve — and the constitution requires — that their communications be treated differently when swept up in the new dragnet.

Even if one believes that the government really can't tell where each end of a communication is in "real time," or at the time of collection, they will be able to eventually. As the Director of National Intelligence testified last month, the heart of these programs is about storing communications and accessing them later.

The government should be forced to go back to court to get a particularized warrant that meets Fourth Amendment standards before it can access American communications that have been swept up in these new blanket or general warrants. Just because the program is directed at people overseas, it doesn't mean that the Fourth Amendment rights of Americans who have contact with them have been respected.

There has not been a surveillance program since FISA was created that allows massive, untargeted collection of communications that will knowingly pick up US communications on US soil without any suspicion of wrongdoing. This creates novel and fundamental Fourth Amendment problems that Congress should seek to avoid instead of sanctioning.

Going back to the court may be inconvenient, but doing so is just a matter or resources and protecting our Fourth Amendment rights is worth the cost.